b. The Arms Export Control Act

Public Law 90-629 [H.R. 15681], 82 Stat. 1320, approved October 22, 1968, as amended by Public Law 91-672 (H.R. 15628], 84 Stat. 2053, approved January 12, 1971; Public Law 92-226 [Foreign Assistance Act of 1971; S. 2819], 86 Stat. 20, 32, approved February 7, 1972; Public Law 93-189 [Foreign Assistance Act of 1973; S. 1443], 87 Stat. 714, 729, approved December 17, 1973; Public Law 93-559 [Foreign Assistance Act of 1974; S. 3394], 88 Stat. 1795, 1813, approved December 31, 1974; Public Law 94-329 [International Security Assistance and Arms Export Control Act of 1976; H.R. 13680], 90 Stat. 729, approved June 30, 1976; Public Law 95-92 [International Security Assistance Act of 1977, H.R. 6884], 91 Stat. 614, approved August 4, 1977; Public Law 95-105 [Foreign Relations Authorization Act, Fiscal Year 1978, H.R. 6689], 91 Stat. 844 at 846, approved August 17, 1977; Public Law 95-384 [International Security Assistance Act of 1978; S. 3075), 92 Stat. 730, approved September 26, 1978; Public Law 96-70 [Panama Canal Act of 1979; H.R. ii1], 93 Stat. 452 at 499, approved September 27, 1979; Public Law 96-72 [Export Administration Act of 1979; S. 737], 93 Stat. 503 at 535, approved September 29, 1979; Public Law 96-92 [International Security Assistance Act of 1979; H.R. 3173], 93 Stat. 701, approved October 29, 1979; Public Law 96-533 [International Security and Development Cooperation Act of 1980; H.R. 6942], 94 Stat. 3131, approved December 16, 1980; Public Law 97-113 [International Security and Development Cooperation Act of 1981; S. 1196], 95 Stat. 1519, approved December 29, 1981; Public Law 97–392 [H.R. 6758], 96 Stat. 1962, approved December 29, 1982; Public Law 98-151 [Further Continuing Appropriations, 1984; H.J. Res. 413], 97 Stat. 964, approved November 14, 1983; Public Law 98-473 [H.J. Res. 648; Continuing Appropriations Act, 1985], 98 Stat. 1837, approved October 12, 1984, Public Law 99-64 [S. 883]; Export Administration Amendments Act of 1985, 99 Stat. 156, approved July 12, 1985; Public Law 99-83 [S. 960]; International Security and Development Cooperation Act of 1985, 99 Stat. 190, approved August 8, 1985; Public Law 99-139 [S. 1726; Act to amend Sec. 51(b) of the Arms Export Control Act], 99 Stat. 562, approved October 30, 1985; by Public Law 99247 (S. 1831; Act to amend the Arms Export Control Act to require that congressional vetoes of certain arms export proposals be enacted into law], 100 Stat. 9, approved February 12, 1986, by Public Law 99-399 [H.R. 4151], Omnibus Diplomatic Security and Antiterrorism Act of 1986, 100 Stat. 853, approved August 27, 1986; by Public Law 99-591 [H.J. Res. 738] Continuing Appropriations Act, 1987, 100 Stat. 3341, approved October 30, 1986; and by Public Law 99-661 [S. 2638], National Defense Authorization Act for Fiscal Year 1987, 100 Stat. 3816, approved November 14, 1986.

AN ACT To consolidate and revise foreign assistance legislation relating to reimbursable military exports.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the "Arms Export Control Act".1

Chapter 1-FOREIGN AND NATIONAL SECURITY POLICY OBJECTIVES AND RESTRAINTS

Section 1.2 The Need for International Defense Cooperation and Military Export Controls.-As declared by the Congress in the

The new title, "Arms Export Control Act", was added in lieu of "The Foreign Military Sales Act" by sec. 201 of the International Security Assistance and Arms Export Control Act of 1976 Public Law 94-329; 90 Stat. 734). Sec. 201 further stated that "any reference to the Foreign Military Sales Act shall be deemed to be a reference to the Arms Export Control Act."

*22 Ú.S.C. 2751.

Arms Control and Disarmament Act, an ultimate goal of the United States continues to be a world which is free from the scourge of war and the dangers and burdens of armaments; in which the use of force has been subordinated to the rule of law; and in which international adjustments to a changing world are achieved peacefully. In furtherance of that goal, it remains the policy of the United States to encourage regional arms control and disarmament agreements and to discourage arms races.

The Congress recognizes, however, that the United States and other free and independent countries continue to have valid requirements for effective and mutually beneficial defense relationships in order to maintain and foster the environment of international peace and security essential to social, economic, and political progress. Because of the growing cost and complexity of defense equipment, it is increasingly difficult and uneconomic for any country, particularly a developing country, to fill all of its legitimate defense requirements from its own design and production base. The need for international defense cooperation among the United States and those friendly countries to which it is allied by mutual defense treaties is especially important, since the effectiveness of their armed forces to act in concert to deter or defeat aggression is directly related to the operational compatibility of their defense equipment.

Accordingly, it remains the policy of the United States to facilitate the common defense by entering into international arrangements with friendly countries which further the objective of applying agreed resources of each country to programs and projects of cooperative exchange of data, research, development, production, procurement, and logistics support to achieve specific national de fense requirements and objectives of mutual concern. To this end, this Act authorizes sales by the United States Government to friendly countries having sufficient wealth to maintain and equip their own military forces at adequate strength, or to assume progressively larger shares of the costs thereof, without undue burden to their economies, in accordance with the restraints and control measures specified herein and in furtherance of the security objectives of the United States and of the purposes and principles of the United Nations Charter.

It is the sense of the Congress that all such sales be approved only when they are consistent with the foreign policy interests of the United States, the purposes of the foreign assistance program of the United States as embodied in the Foreign Assistance Act of 1961, as amended, the extent and character of the military requirement, and the economic and financial capability of the recipient country, with particular regard being given, where appropriate, to proper balance among such sales, grant military assistance, and economic assistance as well as to the impact of the sales on programs of social and economic development and on existing or incipient arms races.4

3 For text, see page 15.

* A paragraph, as amended by sec. 4 of Public Law 91-672 and which had previously appeared at this point, was repealed by sec. 734(a)(10) of the International Security and Development Cooperation Act of 1981 (Public Law 97-113; 95 Stat. 1560). It formerly read as follows:

Continued

It shall be the policy of the United States to exert leadership in the world community to bring about arrangements for reducing the international trade in implements of war and to lessen the danger of outbreak of regional conflict and the burdens of armaments. United States programs for or procedures governing the export, sale, and grant of defense articles and defense services to foreign countries and international organizations shall be administered in a manner which will carry out this policy.

It is the sense of the Congress that the President should seek to initiate multilateral discussions for the purpose of reaching agreements among the principal arms suppliers and arms purchasers and other countries with respect to the control of the international trade in armaments. It is further the sense of Congress that the President should work actively with all nations to check and control the international sale and distribution of conventional weapons of death and destruction and to encourage regional arms control arrangements. In furtherance of this policy, the President should undertake a concerted effort to convene an international conference of major arms-supplying and arms-purchasing nations which shall consider measures to limit conventional arms transfers in the interest of international peace and stability.

It is the sense of the Congress that the aggregate value of defense articles and defense services

or

(1) which are sold under section 21 or section 22 of this Act;

(2) which are licensed or approved for export under section 38 of this Act to, for the use, or for benefit of the armed forces, police, intelligence, or other internal security forces of a foreign country or international organization under a commercial sales contract;

in any fiscal year should not exceed current levels. 5

It is the sense of the Congress that the President maintain adherence to a policy of restraint in conventional arms transfers and that, in implementing this policy worldwide, a balanced approach should be taken and full regard given to the security interests of the United States in all regions of the world and that particular attention should be paid to controlling the flow of conventional arms to the nations of the developing world. To this end, the President is encouraged to continue discussions with other arms suppli

"It is further the sense of Congress that sales and guaranties under sections 21, 22, 23, and 24, shall not be approved where they would have the effect of arming military dictators who are denying the growth of fundamental rights or social progress to their own people: Provided, That the President may waive this limitation when he determines it would be important to the security of the United States, and promptly so reports to the Speaker of the House of Representatives and the Committee on Foreign Relations in the Senate."

Sec. 202(a) of the International Security Assistance and Arms Export Control Act of 1976 (Public Law 94-329; 90 Stat. 734) amended sec. 1 by striking out the last paragraph and adding the language beginning with "It shall be the policy of the United States". The last paragraph of sec. 1 formerly read as follows: "In order to reduce the role of the United States Government in the furnishing of defense articles and defense services to foreign countries and international organizations, and return such transactions to commercial channels, the United States Government shall reduce its sales, credit sales, and guaranties of such articles, and defense services as soon as, and to the maximum extent, practicable."

ers in order to restrain the flow of conventional arms to less developed countries.6

Sec. 2. Coordination With Foreign Policy.-(a) Nothing contained in this Act shall be construed to infringe upon the powers or functions of the Secretary of State.

(b) Under the direction of the President, the Secretary of State (taking into account other United States activities abroad, such as military assistance, economic assistance, and food for peace program) shall be responsible for the continuous supervision and general direction of sales, leases, financing, cooperative projects, and exports under this Act, including, but not limited to, determining(1) whether there will be a sale to or financing for a country and the amount thereof;

(2) whether there will be a lease to a country;

(3) whether there will be a cooperative project and the scope thereof; and

(4) whether there will be delivery or other performance under the sale, lease, cooperative project, or export,

to the end that sales, financing, leases, cooperative projects, and exports will be integrated with other United States activities and to the end that the foreign policy of the United States would be best served thereby.

(c) The President shall prescribe appropriate procedures to assure coordination among representatives of the United States Government in each country, under the leadership of the Chief of the United States Diplomatic Mission. The Chief of the diplomatic mission shall make sure that recommendations of such representatives pertaining to sales are coordinated with political and economic considerations, and his comments shall accompany such recommendations if he so desires.

Sec. 3.9 Eligibility.—(a) No defense article or defense service shall be sold or leased 10 by the United States Government under this Act to any country or international organization,11 and no agreement shall be entered into for a cooperative project (as defined in section 27 of this Act), unless

(1) the President finds that the furnishing of defense articles and defense services to such country or international organiza

This paragraph was added by sec. 15(a) of the International Security Assistance Act of 1978 (92 Stat. 739). Sec. 15(b) of the same Act required a report from the President to the Congress by Dec. 31, 1979, concerning the implications of the multilateral discussions referred to in the paragraph.

722 U.S.C. 2752.

8 Subsec. (b) was amended and restated by sec. 115b of PL 99-83, 99 Stat. 201. It previously read as follows:

(b) Under the direction of the President, the Secretary of State, taking into account other United States activities abroad, such as military assistance, economic assistance, and food for freedom, shall be responsible for the continuous supervision and general direction of sales, leases, and exports under this Act, including, but not limited to, determining whether there shall be a sale to a country and the amount thereof, whether there shall be a lease to a country, and whether there shall be delivery or other performance under such sale, lease, or export, to the end that sales, leases, and exports are integrated with other United States activities and the foreign policy of the United States is best served thereby.

9 22 U.S.C. 2753.

10 The words "or leased" were added by sec. 109(b)(2)(A) of the International Security and Development Cooperation Act of 1981 (Public Law 97-113; 95 Stat. 1526).

11 The words beginning with "and no agreement" and ending with "of this Act", were added by sec. 115(bX2XA) of the International Security and Development Cooperation Act of 1985 (Public Law 99-83; 99 Stat. 201).

tion will strengthen the security of the United States and promote world peace;

(2) the country or international organization shall have agreed not to transfer title to, or possession of, any defense article or related training or other defense service 12 so furnished to it, or produced in a cooperative project (as defined in section 27 of this Act), 18 to anyone not an officer, employee, or agent of that country or international organization or the North Atlantic Treaty Organization or the specific member countries other than the United States) in the case of a cooperative project) 14 and not to use or permit the use of such article or related training or other defense service 12 for purposes other than those for which furnished 15 unless the consent of the President has first been obtained;

(3)16 the country or international organization shall have agreed that it will maintain the security of such article or service 16 and will provide substantially the same degree of security protection afforded to such article or service16a by the United States Government; and

(4)17 the country or international organization is otherwise eligible to purchase or lease 17 defense articles or defense services. In considering a request for approval of any transfer of any weapon, weapons system, munitions, aircraft, military boat, military vessel, or other implement of war to another country, the President shall not give his consent under paragraph (2) to the transfer unless the United States itself would transfer the defense article under consideration to that country.18 In addition, the President shall not give his consent under paragraph (2) to the transfer of any significant defense articles on the United States Munitions List unless the foreign country requesting consent to transfer agrees to demilitarize such defense articles prior to transfer, or the proposed recipient foreign country provides a commitment in writing to the United States Government that it will not transfer such defense articles, if not demilitarized, to any other foreign country or person without first obtaining the consent of the

12 Sec. 203(a) of the International Security Assistance and Arms Export Control Act of 1976 (Public Law 94-329; 90 Stat. 735) added the words "or related training or other defense service". 13 Sec. 115(b)(2)(B)(i) of Public Law 99-83; 99 Stat. 201, added the words beginning with "or produced" and ending with "of this Act".

14 Sec. 115(b)(2)(B)(ii) of Public Law 99-83; 99 Stat. 201, added the words beginning with "(or the North Atlantic" and ending with "cooperative project", of Public Law 99-83; 89 Stat. 201. 15 Sec. 25(2) of the FA Act of 1973 struck out "and" at the end of par. (2) and added the words to this point beginning with "and not to use or permit."

16 Sec. 25(2)(B) of the FA Act of 1973 added par. (3) and redesignated former par. (3) as par. (4). 16 The words "or service" were added by sec. 115(b)(2)(c) of Public Law 99-83, 99 Stat. 201. The words "or lease" were added by sec. 109(bX2XB) of the International Security and Development Cooperation Act of 1981 (Public Law 97-113; 95 Stat. 1526).

17 See 115(bX2XC) inserted the words "or service". They were restated by sec. 1102(3XC) of Public Law 99-145; 99 Stat. 710.

Sec. 204(b)(1) of the International Security Assistance and Arms Export Control Act of 1976 Public Law 94-329; 90 Stat. 736) amended sec. 3 by striking out the following language after "country": ", and prior to the date he intends to give his consent to the transfer, the President notifies the Speaker of the House of Representatives and the Committee on Foreign Relations of the Senate in writing of each such intended consent, the justification for giving such consent, the defense article for which he intends to give his consent to be so transferred, and the foreign country to which that defense article is to be transferred”.